Child rights: Full Report from HRW

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I will post the concluding recommendations of the Committee on
the Rights of the Child on Monday, January 27.
Press release EMBARGOED FOR 10:00 GMT THURSDAY,
JANUARY 16, 1997
For Further Information:
Zunetta Liddell (Geneva) (32-2) 75 68 17 08 (mobile)
Jean-Paul Marthoz (Geneva) (41-22) 732 8010
Sidney Jones (New York) (1-212) 972 8405 ex. 290
BURMA: CHILDREN'S RIGHTS AND THE RULE OF LAW
In Burma: Children's Rights and the Rule of Law, Human
Rights Watch/Asia charges that the military government in
Burma, the State Law and Order Restoration Council (SLORC)
continues to violate children's rights, despite the fact that
it has been a party to the Convention on the Rights of the
Child since 1991. The report is being released to coincide
with a formal U.N. review in Geneva of Burma has complied with
its treaty obligations.
According to the report, children in ethnic minority
areas continue to be used as porters to carry supplies for the
army, often resulting in exhaustion, illness and sometimes
death, not only from inadequate medical care, but also from
beatings.
Thousands of children and their families have been forced
to leave their homes and villages in relocation programs which
have affected over 200,000 people in 1996 alone. In the towns
and cities, children are arbitrarily arrested and detained,
often without charge or trial, for as little as shouting out
slogans or giving out leaflets. Throughout the country
children are routinely used as unpaid laborers on government
construction projects and adoption of children is often used
as a means of securing unpaid child labor in domestic service
or other businesses. Many Burmese girls are trafficked into
Thailand, through border check points administered by the
SLORC, where they become bonded laborers often working in
slave-like conditions.
Underlying all of these abuses is the total lack of the
rule of law and accountability of the government, as well as
draconian restrictions on freedom of expression, association
and peaceful assembly which prevent local reporting and
monitoring of the human rights situation of children.
Over three hundred students and youths were arrested
during the December demonstrations, at least fifty of whom
remain unaccounted for. Universities in Rangoon, Mandalay,
Moulmein and Sittwe have been closed since mid-December, and
all graduations indefinitely postponed.
The report underscores the fact that Burma remains a
closed country, where monitoring and reporting of children's
rights is extremely difficult. The situation has worsened
during 1996, when the government refused to allow the Special
Rapporteur appointed by the U.N. Commission for Human Rights
permission to visit the country.
The report concludes that the government has shown little
political will to implement the terms of the Convention on the
Rights of the Child, suggesting that its accession was not so
much an indication of its desire to protect the rights of
children but rather was an empty gesture designed to improve
the government's image abroad.
Human Rights Watch recommends, among other measures, that
the government immediately takes steps to ensure independence
of the judiciary and strengthen the rule of law. Laws which
are incompatible with international norms, especially those
established by the Convention on the Rights of the Child,
should be repealed or revised. The government must also
encourage the formation of local independent non-governmental
organizations and enable them to work freely to assist
children. International monitoring agencies, including the
Special Rapporteur, the International Committee of the Red
Cross, and the International Labour Organization should be
permitted free access to the country and to monitor and assist
children in detention and children whose rights under the
Convention are being violated.
Copies of this report are available from the Publications
Department, Human Rights Watch, 485 Fifth Avenue, New York,NY
10017-6104 for $6.00 (domestic shipping) and $7.50
(international shipping).
Human Rights Watch/Asia
Human Rights Watch is a nongovernmental organization
established in 1978 to monitor and promote the observance of
internationally recognized human rights in Africa, the
Americas, Asia, the Middle East and among the signatories of
the Helsinki accords. Kenneth Roth is the executive director;
Cynthia Brown is the program director. Robert L. Bernstein is
the chair of the board and Adrian W. DeWind is vice chair.
Its Asia division was established in 1985 to monitor and
promote the observance of internationally recognized human
rights in Asia. Sidney Jones is the executive director; Mike
Jendrzejczyk is the Washington director; Andrew J. Nathan is
chair of the advisory committee and Orville Schell is vice
chair.
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______________________________________________________________
______
January 1997 Vol. 9, No. 1 (C)
BURMA
CHILDREN'S RIGHTS AND THE RULE OF LAW
I. SUMMARY AND RECOMMENDATIONS
II. INTRODUCTION
III. THE LEGAL CONTEXT
IV. GENERAL MEASURES OF IMPLEMENTATION
V. GENERAL PRINCIPLES OF THE CONVENTION
The Principle of Non-Discrimination
Discrimination on the Basis of Citizenship and
Between Classes of Citizens
Discrimination Against Ethnic Minorities
Discrimination Against Religious Minorities
VI. CIVIL RIGHTS AND FREEDOMS
Freedom from Torture, Cruel, Inhuman or Degrading
Treatment or Punishment
Freedom of Expression
Freedom of Association and Peaceful Assembly
Unlawful and Arbitrary Interference with a Child's
Home
VII. FAMILY, ENVIRONMENTAL AND ALTERNATIVE CARE
Children in Detention
Adoption
VIII. SPECIAL PROTECTION MEASURES
Children in Emergency Situations
Children in Conflict with the Law
Children in Situations of Exploitation
IX. ACKNOWLEDGMENTS
I. SUMMARY AND RECOMMENDATIONS
Burma acceded to the Convention on the Rights of the
Child (CRC) in 1991. Since then, however, there has been
little progress towards the implementation of the convention,
and the underlying problems which impede implementation have
not changed. These include a total lack of the rule of law and
accountability of the government, as well as draconian
restrictions on freedom of expression, association and
peaceful assembly which prevent local reporting and monitoring
of the human rights situation of children. Events of October
and December 1996 in Burma, which saw hundreds of high school
and university students take to the streets to demand the
protection of their rights, especially the right to form
student unions, highlight the urgent need for reform. Over
three hundred students and youths were arrested during the
December demonstrations, at least fifty of whom remain
unaccounted for.
This report examines the context within which children
and their parents must struggle to exercise their rights and
looks in detail at the legal provisions which deny them even
the most basic rights and freedoms. It also reports on the
current situation of children in Burma and the daily practices
used by the military and other government agents which violate
international law. These include abuses of international
humanitarian law in ethnic minority areas, including the use
of children as porters for the army and the forcible
relocation of tens of thousands of civilians; the recruitment
of children under the age of sixteen into the armed forces,
often forcibly; arbitrary arrest and detention, often without
charge or trial; the routine use of children as unpaid
laborers on government construction projects; the arrest of
high school students for writing or distributing leaflets, or
for simply calling out slogans, under censorship laws which
also severely limit the publication!
of children's books and magazines; and the use of forced
labor.
Frequently children used as porters die from beatings, a
lack of medical care and exhaustion. Boys as young as thirteen
are forcibly recruited into the army and see military action
by the age of fourteen and fifteen. Even younger boys are
"adopted" by the army and institutionalized as military
recruits by the time they reach the age of fourteen. In some
cases, where children are adopted under Buddhist customary
law, they work in slave-like conditions as domestic servants
or in other businesses. In some cases girls are trafficked
into Thailand, through border checkpoints administered by the
State Law and Order Restoration Council (SLORC, the military
government), where they become bonded laborers working in
slave-like conditions. If these girls are returned to Burma by
the Thai immigration authorities, they face arrest under
Burma's immigration laws for having left the country
illegally. Given the lack of due process and corruption within
the judiciary, they do not receive !
a fair trial. Until April 1992 children who were arrested for
having exercised their right to freedom of association and
expression were tried under summary justice in military
tribunals. Today some of those children remain in adult jails,
where conditions are often appalling. Those sentenced to
prison with hard labor are sent to prison labor camps across
the country where death rates are extremely high.
The report concludes that the government has shown little
political will to implement the terms of the CRC, suggesting
that its accession was not so much an indication of its desire
to desire to protect the rights of children as an empty
gesture designed to improve its image abroad. Nevertheless,
Human Rights Watch welcomes the efforts of the Committee on
the Rights of the Child to engage the government in
constructive dialogue regarding implementation and urges the
international community to support the committee's work.
This report is based on research which Human Rights
Watch/Asia has conducted since 1990. Some of the information
comes from sources inside the country and from U.N. agencies
and international non-governmental organizations (NGOs), but
most is based on first-hand observations and interviews with
Burmese refugees in Thailand and Bangladesh. To protect these
people, we have not included names and other details which
could identify the interviewees.
Human Rights Watch recommends that the State Law and Order
Restoration Council
Take steps to ensure independence of the judiciary and
the rule of law. Laws which are incompatible with
international norms should be repealed or revised, including
the 1982 Citizenship Act; Unlawful Association Act (1908,
amended 1957), Printers and Publishers Registration Law of
1962 and the 1989 law amending it; the 1985 Video Law; the
Wireless and Telegraphy Act of 1985 and the 1996 amendment;
the 1950 Emergency Provisions Act; SLORC Order 2/88; and the
1996 Law to Protect the Stable, Peaceful and Systematic
Transfer of State Responsibility and the Successful
Implementation of National Convention Tasks Free from
Disruption and Opposition.
Ensure that the 1993 Child Law is revised to make it and
all other laws compatible with the Convention on the Rights of
the Child.
Permit and encourage the formation of independent
nongovernmental organizations that wish to work with children
and their parents. Such organizations should also be permitted
to receive training from international NGOs, either in Burma
or abroad.
Enable full implementation of the Convention on the
Rights of the Child by permitting international agencies,
including human rights organizations, access to children
throughout Burma on a regular basis to monitor progress. In
accordance with Article 42 of the convention, the SLORC must
also "make the principles and provisions of the Convention
widely known, by appropriate and active means, to adults and
children alike."
Immediately take steps to ensure that all children who
have been proven guilty of a punishable offense are detained
in juvenile centers and to improve conditions in all places of
detention where children are held. The International Committee
of the Red Cross and other appropriate international bodies
should be allowed regular access to these places.
Allow all children and youths sentenced by military
tribunals before 1992 who remain in jail to appeal their
sentences in juvenile courts. Those sentenced solely for
their peaceful political protests or for exercising their
right to freedom of expression should be immediately released.
All children held in adult jails or prison labor camps should
be transferred immediately to suitable juvenile accommodation.
Educate the armed forces and give strict instructions on
the treatment of civilians, especially children, during
military campaigns. In particular, the use of civilians,
particularly of children, as forced porters for the military
must cease immediately. Those members of the armed forces who
violate the provisions of the Geneva Conventions must be
prosecuted and punished.
Demobilize all children under the age of sixteen who have
been recruited into the army. No children under the age of
sixteen should be permitted to join the military, even where
they are non-combatants or where recruitment is disguised as
education. The practice of forced recruitment, particularly of
children under the age of sixteen, which is a violation of
Burma's domestic laws, must cease immediately.
Take steps to ensure Burma's adoption laws are brought
into line with international standards as established in the
convention, so that children can be protected from abuse and
exploitation by their guardians.
Immediately cease the practice of forcing children and
their parents to work for no pay.
Immediately take steps to prevent the trafficking of
girls and women into prostitution in Thailand and elsewhere.
The SLORC should negotiate with Thailand to establish a system
for monitoring the trafficking in girls, which mainly takes
place at official cross-border checkpoints, and investigate
and prosecute the traffickers to the fullest extent of the
law.
Burmese girls who return or are returned after having
been forced or otherwise lured into prostitution abroad should
not be detained on their return under immigration or other
laws. The government should take steps to ensure that they are
fully rehabilitated and reintegrated when they return and
conduct educational programs to discourage parents and
children from being involved with trafficking agents.
II. INTRODUCTION
Burma is a country of forty-five million people, over
one-third of whom are ethnic minorities who mainly inhabit the
mountainous border regions. Burma was a kingdom until 1823,
when the British colonized the southwest of the country. By
1856, the whole of Burma was under British occupation and
remained so until independence in 1948. Burma's first
post-independence government was elected, and Burma remained a
democracy until the military took over in a bloodless coup in
1962. The military, in different guises, has ruled ever
since. Immediately after independence the Karen ethnic
minority took up arms against the central government, in
protest at the lack of constitutional provisions for self-rule
in their state. The Karen were soon joined by the Communist
Party of Burma and eventually, by the mid-1970s, nearly every
major ethnic group in Burma was represented by armed groups.
Civil war and ethnic strife have thus dominated Burma's
history and have been the raison d'tre of the armed forces in
its thirty-five-year dominance of the country. Between 1962
and 1988 the military adopted a policy of total economic and
political isolation from the international community, and
though some U.N. agencies, including the U.N. Children's Fund
(UNICEF) had offices in Rangoon, there was little
international reporting of the human rights situation in the
country. Isolation and a reliance on military officers rather
than technocrats in the government were to blame for an
economic decline which drove the country from once being the
rice basket of Asia to being declared a "least developed
country" by the U.N. in 1987.
In March 1988 students in Rangoon took to the streets
demanding an end to military rule and economic mismanagement,
and by August the entire country had joined them in nationwide
pro-democracy demonstrations. Six weeks later, realizing that
it was losing control, the current military government, the
SLORC, took power after killing up to 3,000 unarmed
demonstrators. In response, the international community cut
off all bilateral aid to Burma, and the U.S. and European
Union (EU) imposed an embargo on all arms sales. The SLORC
imposed martial law and enacted a series of decrees having the
force of law, designed to severely restrict civil freedoms,
while in remote ethnic minority areas of the country it
stepped up military campaigns designed to boost the army's
image as the savior of the nation. In an effort to increase
the country's foreign exchange reserves, the SLORC announced
an opening of the economy to foreign investment and trade, and
the campaigns against ethnic groups were increasingly focused
on those groups which had control of major trade routes with
Thailand and other neighboring countries.
Realizing the impossibility of militarily defeating the
ethnic armies, the SLORC embarked on a new policy of
cease-fire negotiations in an effort to enforce control over
the countryside. The first cease-fires were all with groups
whose primary interests had long ceased to be political but
were rather economic, as they were the main opium growers,
heroin producers and traffickers in Burma. Since then a
further fifteen armed groups have entered into cease-fire
agreements, and one group, the Mong Tai Army (MTA) lead by
Khun Sa, surrendered in January 1996. In most cases the
cease-fires permit the ethnic armies to maintain their weapons
and men in the areas designated as their territory and to
enter into trading and other business ventures in mainland
Burma. The cease-fires do not include any discussion of a
political settlement, however, and in some areas, notably the
Wa and Mon states, there is a great deal of tension, leading
some analysts to suggest that the military agreements may not
hold. The Karen National Union (KNU), Karenni National
Progressive Party (KNPP) and the Shan United Revolutionary
Army (SURA, formed by former MTA troops who did not agree with
Khun Sa's surrender) are the main groups still at war with the
Burmese army, and in their areas, violations of humanitarian
law against civilians by the army continue to take place.
Despite opening up to foreign investment, Burma remains
largely closed to international monitoring and is a party to
few international legal instruments to protect human rights.
The Burmese government appears to have acceded to a number of
these, including the 1949 Geneva Conventions and the 1989
Convention on the Rights of the Child, in an effort to improve
its international image. Burma came under international
scrutiny for its human rights record shortly after the SLORC
took power in 1989. In 1990 the U.N. Commission on Human
Rights (UNCHR) ordered an investigation into human rights
abuses by the SLORC, appointing a special rapporteur to the
country under the confidential 1503 procedure. In 1992, the
UNCHR resolved to make the procedure public after conditions
failed to improve. The special rapporteur was permitted to
conduct a week-long mission to Burma each year, but access was
denied the new rapporteur in 1996. No international human
rights organizations, including Human Rights Watch, have been
officially permitted to enter Burma since 1988. In addition,
since December 1994, the U.N. secretary general has been
mandated by the General Assembly to assist in the
implementation of U.N. General Assembly resolutions concerning
Burma, although his office was also denied permission to visit
the country in 1996.
The Convention on the Rights of the Child (CRC) was
devised to recognize and protect the economic, civil,
cultural, political and social rights of children. It came
into force in 1990, and by April 1996 there were 187 countries
which had become a party to the convention, leaving only six
states (including the United States) which have not. Uniquely
among United Nations conventions, the CRC includes within its
articles (Article 44) a requirement for states parties to
report to the Committee on the Rights of the Child, based at
the Center for Human Rights in Geneva, detailing progress
towards implementation of the CRC. The committee can then
make recommendations directly to the state party and may
invite other specialized agencies, such as UNICEF, to provide
expert advice.
Burma acceded to the CRC in August 1991, although with
two significant reservations: Article 15, recognizing the
right "to freedom of association and of peaceful assembly";
and Article 37, which states that "No child shall be subjected
to torture or other cruel, degrading and inhuman treatment or
punishment." These reservations were both withdrawn in October
1993. On July 14, 1993 the government passed a new Child Law
(SLORC Law No. 9/93) aimed at protecting "the rights of the
child recognized in the U.N. Convention on the Rights of the
Child." In order to ensure full implementation of the law, it
established of a National Committee on the Rights of the
Child, chaired by the minister of social welfare, relief and
resettlement. It also provided for the establishment of other
committees at the state, divisional, district and township
levels and to the dissemination of the Child Law and the CRC
throughout the country, in all the major languages.
In accordance with Article 44 of the CRC, the government
submitted a report to the Committee on the Rights of the Child
in February 1996. The government's report adds little to the
limited information on the situation for children in Burma.
It is a catalogue of actions which the government will take or
is taking but includes few details of progress towards their
implementation in the five years since Burma signed the
Convention on the Rights of the Child, and there is little
information at all about the current situation of children.
In most countries which have ratified the Convention on
the Rights of the Child, local and international
nongovernmental organizations working with children contribute
to the report by the government, or present alternative
reports to the Committee on the Rights of the Child at the
U.N. Center for Human Rights. In the case of Burma, however,
there are few, if any, truly independent local NGOs in Burma,
and none of them have given information to the committee.
Equally, of the few international NGOs working in Burma, none
have chosen to submit any information publicly to the
committee.
III. THE LEGAL CONTEXT
"The Special Rapporteur observes that the absence of the rule
of respect for the rights pertaining to democratic governance
is at the root of all the major violations of human rights in
Myanmar insofar as this absence implies a structure of power
which is autocratic and accountable only to itself, thus
inherently resting on the denial and repression of fundamental
rights."
Judge Rajsoomer Lallah, Special Rapporteur of the
Commission on Human Rights, October 1996
Before discussing the 1993 Child Law and other relevant
legislation, it is necessary briefly to review the current
legal climate in Burma. The State Law and Order Restoration
Council (SLORC) seized power in a bloody takeover on September
18, 1988, bringing to an end six weeks of peaceful
pro-democracy demonstrations which had toppled three heads of
state. The SLORC, which is composed entirely of senior
military officers, is supported by a cabinet of forty-four
ministers, of whom only five are not serving military
officers. Of those ministers with a special interest in
children, only the Ministry of Health is headed by a civilian,
U Saw Tun, while the ministries of education and social
welfare are both headed by serving military officers.
Immediately after assuming power and imposing martial
law, the SLORC announced that it was a temporary government
which would oversee general elections once law and order had
been secured and would then transfer power to a duly elected
civilian government. At the same time, the SLORC suspended the
1974 Constitution and established military tribunals and new
civilian courts. Elections were finally held in May 1990, and
observers stated that they were free and fair. However, the
SLORC did not transfer power to the overwhelming victors, the
National League for Democracy (NLD), and instead claimed that
the election was for a constituent assembly which would write
a new constitution, under which new elections could be held.
At the same time, hundreds of NLD members and elected members
were arrested. Nearly three years later, in January 1993, a
constituent assembly, known as the National Convention, was
finally convened, yet less than one hundred of the 702
delegates were elected members of parliament, the rest being
hand-picked by the SLORC. In November 1995, the NLD withdrew
from the convention in protest at the lack of democratic
rights within the forum, removing any semblance of legitimacy
the National Convention might have had. Since March 1996
there have been no further meetings of the convention. There
are no other signs that the SLORC intends to honor its
original pledge and its international obligations (in
particular, Article 21 of the Universal Declaration of Human
Rights) by transferring power to those duly elected in 1990.
This situation has been described by the Special
Rapporteur to Burma as one which raises the question as to:
whether any juridical legitimacy that could, arguably,
have been derived from past acquiescence in the assumption of
power by the Military Forces can any longer provide a
defensible basis for the continued maintenance of a
non-constitutional system based on the assumption of martial
powers, having such an unfavorable impact on human rights in
the context of generally accepted international norms and the
obligations undertaken by Myanmar.
Thus, the SLORC itself can be considered an illegitimate
body, both in terms of national and international law, and any
consideration of the rule of law and due process of law in
Burma must take this into account. Since coming to power, the
SLORC has enacted a series of new laws and decrees while
continuing to employ legislation which existed under the old
constitution. Many of these laws are contrary to international
norms, especially those concerning freedom of thought,
expression, association and movement. In addition, there are
concerns regarding the independence of the judiciary and
increasing corruption and malpractice among lawyers.
While military tribunals were revoked in 1992, there is
ample evidence that due process of law and the independence of
the judiciary do not apply in politically sensitive cases.
Judges are appointed directly by the SLORC, and there has been
an increase in retired military judges being promoted to work
in the High Court one example is that of U Tin Htut Aung, a
former colonel who was appointed as a high court judge in
April 1994. During 1996 alone, over sixty members of the
opposition NLD who were arrested had not been charged or tried
by the end of the year. This action contravenes national and
international law, and insofar as none of these people have
had any communication with their families who in most cases do
not know where they are being held, it also contravenes
Article 9, Section 4 of the CRC. In other cases, NLD members
or supporters are often not permitted to have legal
representation, and their trials often take place in camera.
Even in nonpolitical cases, both civil and criminal, the
rule of law has been undermined by a marked increase in
corruption among judges and lawyers, resulting in a system in
which there is one rule for the rich and none at all for the
poor. Judges are paid around 3,000 Kyats a year (about US$300)
and supplement this meager income by accepting bribes.
Concern over the increase in corruption of the courts has even
been voiced by Chief Justice U Aung Toe, who told a group of
recently graduated advocates in May 1996, "Advocates and
lawyers must avoid bribing judges, paving the way to be able
to bribe and urging the clients to bribe." He also urged
advocates "to be loyal to the State and to direct their
efforts toward the welfare of the people without losing sight
of the objectives of the State."
This is the context within which children and their
parents in Burma have to struggle for justice. Implementation
of the CRC, and the SLORC's own Child Law, will continue to be
severely handicapped by the lack of accountability and access
to justice in Burma.
IV. GENERAL MEASURES OF IMPLEMENTATION
The lack of the rule of law and due process in Burma is
clearly a serious obstacle to the implementation of the CRC.
It is however symptomatic of a far wider problem of a
pervasive lack of openness and accountability in the Burmese
government which manifests itself also in the government's
refusal to allow the formation of independent nongovernmental
organizations and to grant access by international monitors
and NGOs. The World Bank, the special rapporteur and other
analysts have noted that the main concern of the SLORC is its
own survival. The primacy of political considerations extends
even to the health sector, where over 15,000 doctors were
sacked in the first two years of the SLORC's term of office
for having "incorrectly" answered questionnaires about their
political opinions. In education too, demonstrations by
students led to the closure of schools and universities for
long periods: all high schools and universities were closed
for most of 1988, all of 1989-90 and !
again in December 1991 for three months. When they reopened,
in order to clear the backlog which had developed, the
university academic year was reduced to three months, and
students completed three-year courses in only one year. From
December 6, 1996 universities, colleges and high schools in
Rangoon were again closed and had not reopened by the middle
of January 1997.
While the government has opened the country to tourism in
the past two years, it has restricted access by U.N. personnel
at the same time. After Burma ratified the Geneva Conventions
in 1992, the International Committee of the Red Cross closed
their offices in Rangoon in July 1995, frustrated by the lack
of access they had been given. Between December 1992 and
October 1996, the U.N. Commission on Human Rights' Special
Rapporteur to Burma, Professor Yokota, conducted four one-week
missions to Burma (there were also two missions in 1990 and
1991 under the confidential 1503 procedure). However, since
Yokota resigned in March 1996, his successor, Judge Rajsoomer
Lallah, has not been allowed into the country. Also in 1996,
the U.N. secretary-general's representatives were denied
access to the country, and thus the secretary-general was
unable to fulfill the mandate entrusted to him by the General
Assembly.
The Convention on the Rights of the Child and the
committee which it established recognize the important role
which NGOs can play in ensuring proper implementation and
reporting on progress towards implementation of the
convention. It is therefore particularly unfortunate that
there are no genuinely independent NGOs in Burma. The
government in its report to the committee cites the Myanmar
Maternal and Child Welfare Association (MMCWA), the Myanmar
Medical Association (MMA), and the Union Solidarity and
Development Association (USDA) as groups with which the
government is collaborating to ensure implementation of the
convention. Despite the fact that many of the members of these
organizations are highly committed to improving the lives of
those with whom they work, none of these organizations can be
said to be independent of government control. The inclusion
of the USDA in the list of NGOs is particularly disingenuous,
as this organization was established by the government 1993
for overtly political reasons (see below). It is headed by a
secretariat comprising three government ministers, all of whom
are serving officers in the Burmese army, and the mayor of
Rangoon. Its aims are identical to those of the SLORC, with
the additional aim of "commission and vitalization of national
pride."
Perhaps the only independent organizations in Burma are
the Christian churches who together form the Myanmar Council
of Churches and the Myanmar Catholic Bishops Conference.
However, while the Council of Churches has been permitted to
register as an NGO, it has thus far not been allowed to openly
work. In June and July 1996, Catholic priests and bishops who
attempted to assist the displaced in Shan and Karenni states
were prevented from doing so by the local military commander,
despite the fact that they had already collected donations.
In accordance with Article 4 of the CRC, which requires
that "States Parties shall undertake all appropriate
legislative, administrative, and other measures for the
implementation of the rights recognized in this Convention,"
the government promulgated the Child Law which entered into
force on July 14, 1993. This law is, so far, the most
comprehensive legislation on children in Burma and a step
towards harmonization of the Convention on the Rights of the
Child with Burma national laws. However, in addition to some
of the inadequacies of the Child Law, it did not supersede
most existing law; therefore the rights of children in Burma
remain subject to pre-existing national legislation. Only the
Young Offenders Act of 1930 and the Children's Act of 1955
were repealed by the Child Law. Thus, while section 15(a) of
the Child Law states that every child "has the right to
freedom of speech and expression in accordance with the law,"
the law, in the form of Section 5(e) of the 1950 Emergency
Provisions Act, can sentence a child to seven years of
imprisonment for as little as "spread[ing] false news, knowing
beforehand that it is untrue."
The law established a National Committee on the Rights of
the Child, chaired by the minister of social welfare, relief
and resettlement, Maj. Gen. Soe Myint. The law also provides
for the establishment of other committees at the state,
divisional and township levels. Given the government's record
thus far, it is unlikely that these committees will be
independent of the government, and unlikely, therefore, that
they will be able to advocate on the behalf of children.
V. GENERAL PRINCIPLES OF THE CONVENTION
The Principle of Non-Discrimination
The most important principle of the CRC is set forth in
Article 2 which provides that state parties "shall respect and
ensure the rights set forth in the present convention of each
child within their jurisdiction, without discrimination of any
kind, irrespective of the child's or his or her parents or
legal guardian's race, color, sex, language, religion,
political or other opinions, national, ethnic or social
origin, property, disability, birth or other status." Thus,
unlike other international instruments, the CRC not only calls
for non-discrimination among citizens of a country but also
commits state parties to ensure that the rights of all
children residing in their territory are protected.
In Burma, despite the frequent reference in the Child Law
to "every child," children are discriminated against in the
law and in practice on the grounds of citizenship, ethnicity,
and religious beliefs.
Discrimination on the Basis of Citizenship and Between Classes
of Citizens
To begin with, the Child Law (1993) does not apply to all
children residing in Burma because it is subject to other
existing laws, for example, the Burma Citizenship Law (1982)
and the Socialist Constitution of 1974. Thus, foreigners
residing in Burma do not have the right to the same services
and benefits under the Child Law as Burmese nationals.
According to Section 154(c) of Burma's 1974 constitution, it
is only children born of citizens who should enjoy equal
rights.
There is further discrimination even among "citizens."
The Child Law in Article 10 states that "every child shall
have the right to citizenship in accordance with the
provisions of the existing law." The notable existing law is
the 1982 Citizenship Law, which designates three categories of
citizens: (1) full citizens (2) associate citizens and (3)
naturalized citizens.
In order to be a full citizen of the country, one must be
able to produce evidence of the birthplace and nationality of
one's ancestors prior to the first British annexation in 1823.
This includes nationals from the Kachin, Karenni (Kayah),
Karen, Chin, Mon, Rakhine and Shan ethnic groups, or any other
ethnic groups which "have settled in the territories included
within the State" prior to 1823. Failing this, one is
classified as an associate citizen if only one (or more)
post-1823 ancestors was a citizen of another county. No other
criteria are stipulated. A naturalized citizen is one who has
a parent who was a full citizen and one who was an associate
citizen. According to the terms of the law, only full and
naturalized citizens are "entitled to enjoy the rights of a
citizen under the law, with the exception from time to time of
the rights stipulated by the State." All forms of citizenship,
"except a citizen by birth," may be revoked by the State.
It is explicitly stated in the law that the three levels
of citizenship entitle the holder to different rights,
although there are many rights not mentioned in the law which
also pertain to citizenship even if they are not always
applied. Among other things, associate citizens cannot own
land or fixed property; they cannot train to be doctors or
engineers (until recent times these were the most sought-after
careers in Burma, as qualification enabled the person to leave
the country); they cannot be tuition (private) teachers; they
cannot work for foreign firms, U.N. agencies or foreign
embassies; and they cannot stand for any elected office. Lack
of these basic rights has not prevented some people attaining
high positions, most notably the foreign minister, U Ohn Gyaw
(an associate citizen), but they are the exception which
proves the rule.
Every person in Burma must carry at all times his or her
identity card. The ID card must be produced in order to obtain
a wide range of services and the right to vote, to purchase
tickets to travel internally, to stay in hostels or with
friends and family outside one's ward of residence, to receive
health and educational services and so on. ID cards are also
routinely demanded for checking by police and army personnel.
Foreigners residing in Burma for more than three months have
Foreign Registration Certificates which they must also carry
at all times. The ID cards were changed in 1990/91 to a new
format, which includes not only the name, address and photo of
the holder, but also his or her ethnic origin and religion.
>From this, anyone checking the card can know what class of
citizen the holder is.
Many members of Burma's ethnic minorities who are
entitled under the Citizenship Law to be full citizens have no
identity cards, especially those who live in areas which were
not under government control for long periods. Access to
written records, the difficulty of traveling to
government-controlled areas for registration, and a general
unwillingness of the government to register such people make
the process of proving citizenship immensely difficult.
Following cease-fire agreements with the ethnic armies, the
government has sometimes announced that identity cards will be
offered to the families and children of those living within
the ethnically controlled areas. For example, in January 1996
it was announced that the SLORC would issue identity cards to
residents of the drug baron Khun Sa's base at Homong in Shan
state. In October 1996 however, Human Rights Watch/Asia
interviewed several former soldiers from Khun Sa's army in
Thailand and was told that the ID cards they were given were
only temporary and would not been replaced by the official
pink cards. Lahu villagers interviewed at the same time told
Human Rights Watch/Asia that despite repeated requests, they
had not been able to change their old cards for the new cards,
even though the Lahu have had a cease-fire agreement with the
government since 1989. Without these cards, they cannot
travel freely within Burma or vote, and their children cannot
attend high school or university.
For the Rohingya Muslims from Arakan state, becoming a
registered citizen is almost impossible. The situation is
even worse for their children born in refugee camps in
Bangladesh. As foreigners, they experience discrimination in
many ways.
Between November 1991 and March 1992, 250,000 Muslims
fled Arakan State to seek refuge in neighboring Bangladesh.
They cited gross abuses by the Burmese army, in what appeared
to be a concerted effort to expel all Muslims from the area.
When Human Rights Watch/Asia conducted interviews in the
refugee camps in 1992, we found that while some possessed
identity cards from the 1950s and 1960s, none had received new
cards under the 1982 law. Indeed, many analysts reported at
the time that the 1982 law was specifically designed to
prevent Rohingyas being recognized as citizens, as the
majority of them settled in Burma during the British colonial
occupation, that is, after 1823.
By December 1996, only 30,000 refugees remained in
Bangladesh, but the citizenship rights of those who have
returned, under a UNHCR-sponsored program, remains uncertain.
On return to Burma, the refugees are given a card which
identifies than as returnees and on production of this card
they can claim their resettlement package. However, to our
knowledge, not one returnee has yet received a new identity
card as any form of citizen, and the government still insists
in public meetings that most of the returnees are in fact
Bangladesh citizens who came to Burma for seasonal work.
Human Rights Watch/Asia is particularly concerned by reports
that many of the remaining refugees are women and their
children who were born in the refugee camps, whom the
government will not recognize as being entitled to
citizenship.
Without being considered citizens, the Rohingyas will
continue to have their rights violated. Rohingya children will
not be able to travel, attend high schools and universities,
or own property. In his report of February 1996, the Special
Rapporteur to Burma said that according to Lt. Gen. Mya Thinn,
the minister for home affairs,
The Muslim population of Rakhine State were [sic] not
recognized as citizens of Myanmar under the existing
naturalization regulations and they were not even registered
as so-called foreign residents. Consequently, the Minister
added, their status situation did not permit them to travel in
the country....They are also not allowed to serve in the State
positions and are barred from attending higher educational
institutions.
Therefore, there is a need to harmonize the Child Law,
the constitution and the Citizenship Act of 1982 to protect
all children within the jurisdiction of Burma against de jure
discrimination. Current legislation and practice contravene
not only the CRC but also the 1961 Convention on the Abolition
of Statelessness. Burma has been repeatedly urged by the
special rapporteur and in numerous resolutions of the
Commission on Human Rights to revise the 1982 Act.
Discrimination Against Ethnic Minorities
We have already seen that ethnic minorities have
difficulty in gaining their right to citizenship, but children
from ethnic minority groups are also discriminated against in
other ways. Minority rights are not adequately protected even
under the 1974 constitution. According to the constitution,
Article 152, "Burmese is the common language, languages of the
other national races may also be taught." The word "may" and
"shall" mean different things in legislative drafting.
Whereas "shall" connotes a mandatory obligation, "may"
suggests probability of observance; there is no compulsion to
observe in all situations, and in practice this is what
obtains. The Child Law is more helpful on this matter. Article
21 states that "Every child shall have the right to maintain
his or her own cherished language, literature and culture, to
profess his or her own religion and to follow his or her own
traditions and customs."
In the three years since the Child Law was promulgated
there has been some progress towards enabling children to
study in their own language, but there has also been some
major setbacks. Prior to 1993, ethnic minority languages were
banned from the school curriculum, no magazines could be
published in any languages other than Burmese and English, and
in 1988 two Mon monks who had completed a scholastic exam
using Mon script were sentenced to ten-year prison terms.
Now, there are some magazines available in the Shan, Rakhine
and Karen languages, and U.N. agencies and NGOs working in
Burma have been permitted to publish information leaflets in
ethnic languages.
However, the fact remains that the right to be protected
against discrimination is still governed more by political
expediency than by formal guarantees of rights. Equally
important is the lack of central government control over the
orders of local and regional military commanders, whose every
whim becomes policy in the areas under their control. For
example, in Mon state where the New Mon State Party (NMSP)
came to a cease-fire agreement with the government in March
1995, the NMSP were at first permitted to continue teaching in
the Mon language in all of the schools they administered.
There was also an agreement that the SLORC would build more
schools in the Mon area, and that in primary schools, Mon
language could be taught. In early 1996, however, there were
disagreements between the Mon and the SLORC concerning the
evacuation of territory which the Mon had previously
controlled. Soon after, a new order was sent out by the
regional commander prohibiting the teaching of Mon language in
any schools which receive government assistance, though the
teachers could, should they choose, use the school buildings
outside of school hours to teach Mon. By July 1996, this
provision was also revoked, and no school buildings were to be
used to teach Mon.
Discrimination Against Religious Minorities
It is very important to children's development that they
and their parents be permitted the right to freely worship and
profess their religious faith. This is recognized in Article
14 of the Convention of the Rights of the Child and in Section
21 of Burma's Child Law. Despite the new law, however, there
have been indications of an increasingly intolerant attitude
by the government towards the ethnic and religious minorities
(and the two groups usually coincide). Without going so far
as to designate Buddhism the state religion, the SLORC has
enacted a clear policy to promote Buddhism in Burma, both in
order to enhance the legitimacy of the military government and
to forge "national solidarity." Thus, while Buddhist monastic
schools have been greatly encouraged, especially in ethnic
minority areas in recent years, there are no Christian middle
or high schools, and in many areas unofficial madrasahs
(Muslim schools) have either been closed or prayers within the
schools have be!
en prohibited.
In response to the 1993 report of the Special Rapporteur
on Religious Intolerance, the SLORC claimed that it "is
prudent and careful in taking measures so that there is no
discrimination against other religious faiths...For this
reason, a separate Ministry of Religious Affairs...was
established in 1992." The statement did not add that the
religious affairs ministry is located in the grounds of the
World Peace Pagoda (Kaba Aye) in Rangoon, a compound which
also serves as the home of the most senior committee of
Buddhist monks, the Sangha Maha Nayaka Committee. Nor did he
mention that one of the main functions of the Ministry of
Religious Affairs is the propagation of Buddhism, both
nationally and internationally, through the publication of
Buddhist scriptures and the establishment of Buddhist
missionary schools in ethnic minority areas.
The SLORC policy of promoting Buddhism as an essential
facet of being a "true" Burman has led to discrimination
against non-Buddhist children on ethnic and religious grounds
and in some cases to forced conversions. In northern Sagaing
division in December 1994, the Naga people of Konkailon
village (who are predominantly Christian) were ordered to
demolish their church and construct a Buddhist monastery in
its place. The following month, villagers from Konkailon,
Kuki, Nurnitmumpi and Pansat were forced to accept sila
(Buddhist vows) from monks who had been brought in by the army
to occupy church buildings. In the Chin state, also a
predominantly Christian area, Human Rights Watch/Asia received
reports that in May 1994 government authorities offered six
villagers the chance to send their children all of whom were
under fourteen years of age to boarding schools in Rangoon,
where educational standards are much higher. Months later,
when the parents requested permission to visit their children,
they discovered that the children had been taken to a Buddhist
monastery where they had been forced to convert. None of the
children were permitted to return home. While we have not been
able to confirm either of these reports, we remain concerned
that children have been taken away from their parents under
false pretenses and denied their right to freely practice the
religion of their choice.
Muslim children have also been denied the right to
freedom of religion. Rakhine Muslims cited religious
persecution as one of the factors which drove them to seek
refuge in Bangladesh in 1991 and 1992. In northern Arakan
state, mosques were destroyed or otherwise closed down, and
Muslim children were not permitted to attend madrasahs. More
recently, in September 1996 a 600-year-old mosque in the old
capital, Mrauk-Oo, was demolished by the army despite appeals
by the local Muslim community. In October 1996 Human Rights
Watch obtained anti-Muslim leaflets which had been distributed
in Rangoon warning all Burmans to be especially vigilant to
the "threat" of Muslim dominance. The leaflets told "patriotic
Burmese" not to eat at Muslim restaurants, buy from Muslim
shops, or employ Muslim workers. The leaflets were not signed
by any organization, but Muslims believed they were designed
to stir up religious and racial tension to distract from the
student demonstrations which had begun in the same month.
Similar tactics were employed in 1988.
VI. CIVIL RIGHTS AND FREEDOMS
The Child Law includes provisions protecting the civil
rights and freedoms of children; however, these rights are
subject to important qualifications which essentially
undermine their efficacy. For example, Section 14 of the
Child Law states: "Every child shall, irrespective of race,
religion, status, culture, birth or sex be (a) equal before
the law and (b) given equal opportunities." But this is
subject to Article 154(c) of the constitution which states
that only "Children born of citizens shall enjoy equal
rights."
Further, Section 15 of the Child Law states that every child:
(a) has the right to freedom of expression in
accordance with the law;
(b) has the right to freedom of thought and
conscience and to freely profess any religion
(c) has the right to participate in organizations
relating to the child, social organizations or religious
organizations permitted under the law.
Despite these provisions, the Child Law is subject to all
existing laws, and in Burma there is a wealth of laws
restricting the civil rights of all citizens. The rights of
the child to freedom of expression and association are subject
to a number of other existing laws, including the Unlawful
Association Act (1957); Printers and Publishers Registration
Law of 1962 and the 1989 law amending it; the 1985 Video Law;
the Wireless and Telegraphy Act of 1985 (amended in October
1996); the 1950 Emergency Provisions Act; and the June 1996
Law to Protect the Stable, Peaceful and Systematic Transfer of
State Responsibility and the Successful Implementation of
National Convention Tasks Free from Disruption and Opposition.
Each of these laws have been denounced as being contrary to
international norms by the U.N. Special Rapporteurs to Burma
and by human rights organizations.
Freedom from Torture, Cruel, Inhuman or Degrading Treatment or
Punishment
Given that torture has been reported by the Special
Rapporteur to Burma as being "regularly employed against
civilians living in insurgency areas, against porters serving
the army and in working sites where forced labour is
practiced," and that the government at first omitted Article
37 of the CRC when it was ratified in 1993, particular
attention must be paid to the elimination of all forms of
torture, cruel, inhuman and degrading punishment of children.
The treatment of children in insurgency areas is discussed
below, but Human Rights Watch/Asia is also very concerned
about the treatment of children in detention centers and
jails.
Because students and young people were at the forefront
of the pro-democracy demonstrations in 1988, hundreds were
arrested and jailed. In many cases, these children and youths
died while under interrogation and their bodies were buried in
mass graves, as the Special Rapporteur to Burma noted in his
1993 report. There has never been an investigation into any of
the deaths which occurred in 1988 and 1989, and many parents
are still unaware of the whereabouts of their children. In
most cases torture takes place immediately after arrest, when
the subject is held in military intelligence centers for
interrogation. During this period, which can last for up to
two weeks, the suspect is held incommunicado, in contravention
of international norms.
Despite concerns over the use of torture by Burmese
soldiers, military intelligence personnel and police, the
Child Law does not explicitly prohibit these acts of violence
against children but merely states in Section 37 that a police
officer taking action against a child "shall not handcuff the
child or tie with a rope." There is also no explicit
prohibition against the use of rape as a means of torture by
government agents, though this is known to have occurred
frequently in ethnic minority areas where girls and young
women are taken to work as porters for the military or are
otherwise kidnapped and held in army camps overnight where
they are repeatedly raped (see below). The omission of
prohibitions against torture and rape is unacceptable, and the
law should be amended not only to prohibit all forms of
torture of children but also to impose the terms of punishment
for the perpetrators of such acts.
Sections 30 and 31 of the Child Law address the ethics
and discipline of a child and impose a number of duties on a
child which include "abiding by the school discipline, work
discipline and community discipline; cherishing and
preserving the race, language, religion, culture, customs and
traditions concerned with him."
Further, Section 65(d) states that whoever willfully
mistreats a child, shall, on conviction, be punished with
imprisonment for a term which may extend to six months or with
a fine of up to Kyats 1000, or with both "with the exception
of the type of admonition by a parent, teacher, or a person
having the right to control the child, which is for the
benefit of the child" (emphasis added). These provisions could
be seen as encouraging parents and teachers to use physical
punishment, contrary to Article 37 (a) of the convention which
protects children from assaults on their dignity and physical
integrity.
The Committee on the Rights of the Child has condemned
corporal punishment in institutions and at home during its
thematic debate held on November 13, 1995 to address the issue
of juvenile justice and also during consideration of state
party reports. According to the committee, the use of
physical punishment as a sentence of the courts or as a
punishment within institutions is not compatible with the
convention.
Freedom of Expression
Existing censorship laws in Burma are extremely
restrictive, and in the past year they have become more so.
The SLORC has enacted or amended five laws relating to the
freedom of expression. Under the 1962 Printers and Publishers
Registration Law, all publications and other media materials
(including videos and films) must be assessed by the Press
Scrutiny Board before publication or release. This law was
amended in 1992 to increase the fines and prison sentences
which could be handed to those found guilty of breaking the
law to a maximum of seven years imprisonment and/or a fine of
30,000 Kyats ($300) this is thirty times the fine and six and
half years more than the custodial sentence which can be
imposed on those found guilty of maltreating a child. The
Press Scrutiny Board reads every novel or book of short
stories before it can be published, though the publisher has
to furnish the board with a number of copies. Even after
passing the censor in draft form, a book must be!
resubmitted after publication before it can be distributed,
and it is not unusual for books to have pages ripped out or
entire passages inked over before distribution is permitted.
In some cases, entire books have been scrapped, even though
they passed the first round. Magazines and periodicals are
scrutinized by the board only after printing, so that editors
and authors are obliged to operate strict self-censorship. As
a result of these methods, the publication of books and
magazines can be both extremely costly and risky, and few
publishers risk printing anything that may inadvertently
arouse the suspicions of the board. The publication of
children's books and periodicals, which the CRC recognize as
being an essential to assisting children's development, is
thus discouraged.
In addition to censoring domestic publications, the
import of foreign newspapers and books is strictly controlled
and those foreign magazines and publications that find their
way to the street markets in Rangoon have politically
sensitive articles removed. Scores of writers and artists have
been arrested and given long sentences for breaching the 1962
law, including Ma Thida, who was arrested in 1993 and
sentenced to twenty years in jail for having distributed
anti-government leaflets. Ma Thida is a medical doctor and was
twenty-seven years old at the time of her arrest. Other laws
also restrict freedom of expression, such as the 1985 Wireless
and Telegraphy Act, which was amended in October 1995 to
increase the punishment for persons possessing facsimile
machines without a license to three years in prison or fine of
30,000 Kyats ($300). In 1996 the law was further amended to
include the need for licenses for all computer modems. This
law may prove to be particularly harmful !
to the education of children, as it is not yet clear how
difficult it will be to acquire a license and what
arrangements will be made for educational institutions in
which more than one person has access to the communications
hardware.
Even while enacting these draconian laws, the SLORC
continues to state that it is "committed to the principles
contained in the charter of the United Nations and the
Universal Declaration of Human Rights" but qualifies this with
the often heard disclaimer that "our concept of human rights
is based on our values, traditions and culture." In regard to
freedom of expression, the government's interpretation of
"Burmese values" extends to forbidding "anyone speaking,
writing, printing, publishing falsities, insulting,
organizing, assembling and instigating that can cause the
people to get misinformed or confused about the national
problems, discrediting the government to turn people against
it, and to cause upheavals." This is also expressed in the
June 1996 Law to Protect the Stable, Peaceful and Systematic
Transfer of State Responsibility and the Successful
Implementation of National Convention Tasks Free from
Disruption and Opposition, which carries a maximum sentence of
twent!
y years in prison with hard labor for anyone found guilty of
making an oral or written statement or disseminating any
papers in order to "undermine the stability of the State,
community peace and tranquility and prevalence of law and
order" or "undermine, belittle and make people misunderstand
the functions carried out by the National Convention." Since
this law was promulgated, nine students were arrested on
September 21, 1996 for distributing leaflets outside Daw San
Suu Kyi's house on charges of "disrupting the nation's peace
and tranquility." It is not known what sentences they
received.
Many other children and youths have been arrested and
prosecuted under existing laws for exercising their right to
freedom of expression. In December 1991, Amnesty
International reported that a fourteen-year-old boy, Ko Win
Thein, was arrested in February 1990 for having put up
"anti-government" posters in his high school in North Okalapa,
Rangoon. He was sentenced to thirteen years in prison. The
same report also reported the arrests of nine high school
students from Monywa on July 19, 1991. They included Than Zin
Hlaing, Soe Win Maung, Kyaw Moe, Htun Ohn, Kyaw Kyaw Lwin,
Aung Aung and Aung Naing for similar offenses. Eight others
from Mandalay were also arrested for distributing leaflets in
the same month: Myo Win Thant, Soe Soe Oo, Kyaw Soe, Lin Lin
Zaw, Win Thein, Win Tin, Htun Ohn and Aye Ko. All of these
boys were between fourteen and eighteen years old. It is not
known if any of these boys have been released. They were all
tried by military tribunals in which the !
defendants were not permitted legal representation or to call
witnesses, and there was no right of appeal except to the
commander-in-chief of the armed forces. This was in violation
of Article 12 of the Convention on the Rights of the Child, in
particular 37 (d), which stipulates that "Every child deprived
of his or her liberty shall have the right to prompt access to
legal and other appropriate assistance, as well as the right
to challenge the legality of the deprivation of his or her
liberty before a court or other competent, independent and
impartial authority, and to a prompt decision on any such
action." Although military tribunals have been disbanded, none
of the children tried by them has been permitted to seek a
retrial by a civilian court.
Freedom of Association and Peaceful Assembly
The rights of the child to freedom of association and to
freedom of peaceful assembly, enshrined in Article 15 of the
convention, are constantly under threat in Burma. As with
expression, there are several laws which prohibit peaceful
assembly, including SLORC Order 2/88 which makes it an offense
for more than five people to gather in a public place. Others
prohibit free association, most notably the 1957 Unlawful
Associations Act, which provides for a sentence of up to five
years for anyone who has been a member, given contributions
to, or promoted or assisted any association which "encourages
or aids persons to commit an act of violence or intimidation
or of which the members habitually commit such acts; or which
has been declared unlawful by the President."
During the uprising in 1988 and in subsequent
demonstrations in 1990, 1991 and 1992, hundreds of high school
children were arrested for taking part in peaceful political
protests, and many of them received long prison terms under
military tribunals. Most had to serve their sentences in
adult jails or work camps. More recently, on May 16, 1996 six
students from Rangoon university, all under the age of twenty,
were arrested for having assisted in the organization of a
planned NLD congress. The congress was stopped by the
government, which detained for up to five days some 294 NLD
elected members of parliament and ordinary party members. The
six students, however, remain under arrest, though it is not
known if they have been charged or tried. Later in the year,
high school students in Rangoon demonstrated, calling for
improvements in students' rights and in particular the right
to form a student union. The protests were stopped by armed
riot police, who in December used water cannons and beatings
to disperse the crowds. Over 300 youths were arrested, but
most were released after staying overnight on the grounds of a
former horse racing track. Others have "disappeared," and it
is not known how many may still be held in detention. There
were unconfirmed reports of at least two students being
seriously injured when large rocks were thrown at the crowd by
the riot police, and two journalists, including a Japanese
man, were also injured. Since December 10, all institutes of
continuing education in Rangoon, Mandalay, Moulmein and Sittwe
have been closed, and all students not resident in those
cities were ordered to return to their home villages and
towns.
While student unions remain prohibited, children and
youths are being forced through a variety of measures to join
government associations against their will. High school
children and university students are threatened with losing
their places at school if they do not join the USDA (see
above). In other cases, only USDA membership can guarantee
access to scarce teaching resources, such as computers and
language laboratories. The USDA particularly targets children
and youths, with the intention of instilling in them loyalty
to the nation and respect for the armed forces, and creating a
"patriotic youth force." Within two years of its foundation,
the USDA had over 2.5 million members, the majority of whom
were high school students and their teachers. The USDA has
been used by the SLORC to show public support for their
policies, as a counterforce to the massive public support
which the NLD enjoys. When the NLD walked out of the National
Convention in November 1995, the USDA h!
eld huge rallies, and at each, the crowds pledged their
support for the National Convention. In June 1996, at a time
when Daw Aung Suu Kyi's weekly public speeches were drawing
crowds of up to 4,000 people outside her house, the USDA again
held mass rallies across the country where the membership
listened to speeches denouncing her and the NLD. Later in the
year the rivalry between the USDA and the NLD took an ugly
turn when on November 9, 1996 over 200 USDA members attacked a
convoy of cars carrying Daw Aung San Suu Kyi and her deputies.
Two days later, the chairman of the SLORC, Sr. Gen. Than Shwe,
was reported in the government newspaper as telling senior
USDA leaders, "It is the duty of the entire people including
USDA members to resolutely crush destructive elements inside
and outside the country as the common enemy who are disrupting
all the development endeavors with the sole aim of gaining
power."
Unlawful and Arbitrary Interference with a Child's Home
Article 16 of the CRC states that "No child shall be
subjected to arbitrary or unlawful interference with his or
her privacy, family, home or correspondence..." There is no
acknowledgment of this right in the Child Law, and it is a
right which is frequently violated by the Burmese government.
One of the most common violations is the forcible relocation
of poor families from their homes in Burma's urban centers to
"new towns." Generally, the new towns are little more than
scrub land or paddy fields confiscated by the government, with
no sanitation, water, electricity or other facilities. Since
1988 hundreds of thousands of urban poor have been moved in
this way, often in order to "clean up" areas of specific
interest to tourists or simply to encourage foreign investment
by hiding poor shanty towns outside the city centers. The 1989
relocation of the population of Pagan, a popular tourist
destination, is well documented, but as recently as May 1996
the entire population of Mrauk-Oo, the ancient capital of
Arakan state which once rivaled Amsterdam as a trading center,
was forced to abandon homes and livelihoods to make way for
the "development" of the city for tourists.
Forced relocations are extremely disruptive to children,
and where no provisions are made for their health and shelter
in relocation sites, they can also lead to serious illness and
death. At the relocation sites, there are no additional
schools, and children are often obliged to assist their
parents in trying to find work. The vast majority of families
who are relocated suffer a dramatic drop in their living
standards. In addition to having to find the money to buy the
land and build new homes, they also have to pay to commute
into the city to find work. NGOs working in the new towns say
that there have been massive social problems as a result, with
fathers leaving the home to find work and one-parent families
becoming increasingly destitute. UNICEF and NGO figures show
that in 1995, infant mortality rates and malnutrition levels
among children remain extremely high.
Forced relocations also occur in rural areas where ethnic
rebels are active or which have been designated as "brown"
areas by the government. See "Children in states of
emergency," below.
VII. FAMILY, ENVIRONMENTAL AND ALTERNATIVE CARE
Children in Detention
Human Rights Watch/Asia is very concerned about the
treatment of children in detention centers and jails. Since
the SLORC took power, torture and inhuman treatment of
prisoners, particularly political prisoners, has been routine.
There is no international monitoring of conditions in Burma's
jails, and in June 1995 the International Committee of the Red
Cross announced that it was closing down its offices in Burma
following the failure of negotiations to gain access to all
Burma's places of detention.
In the government's report to the Committee on the Rights
of the Child, it states that children will be tried by
juvenile courts and, if convicted of any offense, they will be
detained in juvenile detention centers. Human Rights
Watch/Asia believes that there is only one, possibly two,
detention centers for boys in the whole of Burma. One, outside
Rangoon, houses 400 boys who have been convicted of serious
criminal offenses, including murder, drug trafficking and
violent theft. Access to this institution has been severely
limited, and to Human Rights Watch/Asia's knowledge no foreign
expert or individual has been given access in the past seven
years. A consultant to UNICEF, Jo Boyden, wrote in a report
in February 1992 that "this facility should be investigated at
the earliest opportunity since conditions are reported to be
particularly harsh there. One doctor who visited the center
observed extremely high levels of sexual abuse." To our
knowledge, this recommendation has not been taken up, although
UNICEF and some international NGOs have raised the issue with
the Burmese government.
Given the current lack of juvenile detention centers in
Burma, many child offenders are believed to be held in adult
facilities, despite the provisions of the Child Law. In the
past five years the numbers of prisons and prison labor camps
in Burma has increased substantially, and conditions in the
labor camps particularly are known to be appalling. In
September 1995, Human Rights Watch/Asia witnessed a group of
over one hundred women and young girls marching in line from
their prison labor camp just outside Mandalay to the quarry
where they worked. Although it was not possible to talk to
the women, locals reported that some of the girls were as
young as fifteen, and most had been sentenced for petty
crimes, such as stealing. It is not known how many children
are held in similar camps across the country, but Human Rights
Watch/Asia urges an immediate investigation into conditions in
prison labor camps. The Special Rapporteur on Burma, in his
1996 report noted that "108 out of a total population of 503
prison inmates died from starvation, sickness and hard work
during one year in Boke Pyin prison labor camp."
As well as children detained for their actions, young
children may also be detained along with their mothers.
Section 53 of the Child Law allows the child of a female
prisoner to stay together with his/her mother in prison until
the age of four years or six years if the mother so desires.
A former inmate of the women's section of Insein Jail, the
main prison in Rangoon, told Human Rights Watch/Asia in 1992
that at any one time between fifty and sixty children were
housed with their mothers. Human Rights Watch/Asia urges the
government to consider non-custodial sentence in case of
nursing mothers and mothers with young children as an
alternative form of sentencing. In jail, the conditions in
which these children have to live are cause for concern. They
receive no supplementary foods, other than that given to all
adult prisoners (which is poor quality rice, with a small
amount of fish paste and liquid vegetable curry). There are no
schooling provisions for them, and, like all prisoners, they
are not permitted to have books or toys. In addition, Human
Rights Watch/Asia is concerned by the fact that some children
stay with their mothers for many years. In one particular
case which was reported widely in the media at the time, a
Karen girl who had been born in jail was released in September
1988 when the government emptied all of Burma's jails to make
room for political prisoners. Her mother had died some years
before, and, at the time of her release, the girl was
twenty-four years old.
Adoption
Section 17 of the Child Law permits adoption but fails to
ensure that the best interests of the child shall be the
paramount consideration as required under the CRC. The
provision that adoption "shall be in the interests of the
child" is not sufficient. Orphans or children who have
otherwise lost their parents or guardians are vulnerable to
abuse and may become bonded as domestic servants or farm
laborers. Burma's informal adoption practices, under which
most adoptions take place, are based on Buddhist customary law
and include no legal protection for these children. A
consultant for UNICEF described the situation as one which
"legitimates the exploitation of children from poor families
by wealthier families. Parents surrender their children in
good faith, expecting them to be treated as members of the
adoptive family. Instead they become unpaid domestic laborers
and may be subjected to many other abuses besides."
Specialized centers and agencies should be established to
provide information on parentless children available for
adoption or placement with families. Further, the legislation
does not provide for measures to protect children after
placement. In order to protect children placed in care,
periodic review of the placement is required.
VIII. SPECIAL PROTECTION MEASURES
Article 32 of the Child Law (1993) states that the
following children are in need of protection and care:
a) one who has no parents or guardian;
b) one who earns his living by begging;
c) one who is depraved, a character that is uncontrollable
by his parents or guardian;
d) one who is in the custody of a cruel or wicked parent or
guardian;
e) one who is of unsound mind;
f) one who is afflicted with a contagious disease;
g) one who uses a narcotic drug or a psychotropic substance;
h) one who is determined as such from time to time by the
Social Welfare Department.
This definition appears to be exhaustive, yet it does not
include children in conflict with the law, refugee or
displaced children, children who are physically and mentally
abused. In addition, the Child Law is not consistent with the
provisions of the convention. It fails to mention the need
for special protection measures for children in exceptionally
difficult circumstances, children deprived temporarily or
permanently of their family environment, children in
situations of emergency (CRC Articles 22, 38 and 39), children
in conflict with the law (CRC Articles 40, 37 and 39),
children in situations of exploitation, including physical and
psychological recovery and social reintegration (CRC Articles
32, 33, 34, 35, 36 and 39), and children belonging to a
minority or indigenous group (CRC Article 30).
Section 32(d) above does not adequately cover children
who may be sexually abused and economically exploited within a
family. The labeling of parents or guardians as "evil or
wicked" does not go far enough to define the kinds of abuse
which should be prohibited. Article 19 of the CRC provides
that state parties "shall take all appropriate legislative,
administrative, social and educational measures to protect the
child from all forms of physical or mental violence, injury or
abuse, neglect or negligent treatment, maltreatment or
exploitation, including sexual abuse, while in the care of
parent(s), legal guardian(s) or any other person who has the
care of the child," and this definition should be incorporated
directly into the Child Law.
Children in Emergency Situations
Articles 22, 38 and 39 of the CRC which deal with
children in situations of emergency cover such issues as
refugee children, humanitarian law and provisions for the
physical and psychological recovery of children who are the
victims of neglect, abuse or armed conflicts. In Burma, abuse
of the provisions of international humanitarian law is
routine, despite the government's accession to the Geneva
Conventions. However, the Child Law makes no mention of the
need to especially protect children in situations of armed
conflict, be that internal or external, nor are there any
provisions for the physical and psychological recovery of
children affected by armed conflicts.
Many of the ethnic minorities in Burma have lived in a
state of low-intensity conflict since 1948, and in these areas
violence has become a way of life. Civilians are routinely
abused by all sides to the conflict but most often and most
frequently by the Burmese army. The forms of abuse which
affect children most directly are porter service, whereby
civilians are forced to carry arms and supplies for the army
to front-line positions or while the army is on patrol; the
forcible recruitment of child soldiers; and the forcible
relocation of entire villages in areas where ethnic rebels are
known to operate.
Child Porters
The Burmese army routinely uses civilians as unpaid
porters to carry ammunition and food supplies to front-line
positions or while on patrol in ethnic minority areas. Many
children are extrajudicially or accidentally killed while
working as porters, and all are subject to cruel, inhuman and
degrading treatment. The taking of porters has become less
common since fifteen ethnic groups have signed cease-fires,
but it has by no means ended. Both the Kachin Independence
Army (KIA) and the Karenni Nationalities Progressive Party
(KNPP) have reported that the taking of porters continues in
their areas, as the army steps up its military presence there.
Indeed, this was cited as a major reason for the collapse of
the KNPP's cease-fire agreement in June 1995. In areas where
there are no cease-fires, especially the Karen state, the
taking of porters continues unabated.
When civilians, often ethnic minority villagers, were
taken as porters, it was often while they were in their
fields, or on trips away from their homes. Their wives and
mothers were never informed, and in many cases women
interviewed by Human Rights Watch/Asia in refugee camps in
Thailand and Bangladesh said they left Burma because they
believed that their husbands or fathers had been killed while
working as porters. Some had tried to get information about
their relatives' whereabouts from the local military base, but
only rarely were they given information. Porters who fail to
return after being forcibly conscripted therefore become
effectively "disappeared" victims.
Most frequently, men and boys are taken to work as
porters, although women are also taken if their husbands run
away as the army approaches the village. In one major
offensive against the KNU from January to March 1993, scores
of women and girls were taken to the front-line and kept there
for the entire three months, where they were frequently raped
by the soldiers. Since then, however, we believe that there
has been an attempt by military commanders to reduce the
number of women abused in this way. In January 1995, for
example, the porters interviewed by Human Rights Watch said
that no women had been taken among 5,000 porters used at that
time.
Boys as young as fourteen years old have been taken to
work as porters, particularly during major military
offensives. Routinely, though, young boys are forced to carry
supplies for one day at a time, while the army is on patrol.
Many boys have died as a result of the treatment they received
while working as porters. In August 1991, Amnesty
International reported the case of a sixteen-year-old boy from
Hlaingbwe township who was taken to be a porter in November
1990. He was only with the army for four days, but died six
days later from internal injuries caused by beatings from the
soldiers. In the same report, two other fifteen-year-olds were
also reported as having been taken as porters. In January
1995, Human Rights Watch/Asia interviewed fifty men and boys
who had been taken to work as porters during the offensive
against the KNU headquarters at Manerplaw, near the Thai
border. One of them was fifteen years old. He had been taken
with his father in a cinema hall in Mudo!
n, Mon State. Soldiers had beaten the boy when he could not
carry his load, and his father said that he was lucky to be
alive.
As well as working as porters, civilians also have to
guard militarily strategic roads and railways. Usually, women
and girls are chosen for this work, and those with small
children have no option but to take them along. For the
children, this is can be very abusive. "Guard duty" lasts
from twenty-four hours to ten days, and the women sit under
trees along the road or at the edge of railway embankments in
an attempt to keep out of the hot sun or to shelter from the
monsoon rains. The women have to take whatever food and
cooking utensils they can carry and are not given additional
food by the army. In some cases the children fall ill, but
there is no medical treatment for them and the women cannot
leave their positions for fear of being shot. They are
frequently checked by soldiers in vehicles throughout the day
and night to ensure that they have not fallen asleep. Those
who fall asleep or who leave their posts even briefly are
beaten and verbally abused.
The use of civilians as porters for the army violates
Common Article 3 of the Geneva Conventions, to which Burma
acceded in 1992. In the case of armed conflict not of an
international character occurring in the territory of one of
the High Contracting parties, each party to the conflict shall
be bound to apply, as a minimum, the following provisions:
1. Persons taking no active part in the hostilities,
including members of armed forces who have laid down their
arms and those placed hors de combat by sickness, wounds,
detention, or any other cause, shall be in all circumstances
treated humanely..To this end the following acts are and shall
remain prohibited at any time and in any place whatsoever with
respect to the above mentioned persons:
a) violence to life and person, in particular murder of
all kinds, mutilation, cruel treatment and torture;
b) taking of hostages;
c) outrages upon personal dignity, in particular
humiliating and degrading treatment...
The use of children as porters by the Burmese military also
violates Article 38 of the Convention on the Rights of the
Child, by which
States Parties undertake to respect and to ensure respect
for rules of international humanitarian law applicable to them
in armed conflicts which are relevant to the child.
(4) In accordance with their obligations to protect the
civilian population in armed conflicts, States Parties shall
take all feasible measures to ensure protection and care of
children who are affected by armed conflict.
Child Soldiers
The Convention on the Rights of the Child states in
Article 38 (2) that "States Parties shall take all feasible
measures to ensure that persons who have not attained the age
of fifteen years do not take a direct part in hostilities" and
(3) " States Parties shall refrain from recruiting any person
who had not attained the age of fifteen years into their armed
forces." There is no similar prohibition in the Child Law,
but Burma's armed forces regulations prohibit the recruitment
of boys under the age of sixteen.
Nevertheless, all sides to the Burmese conflict employ
children to fight their wars. The Shan Mong Tai Army and the
United Wa State Army are believed to have the largest numbers
of child soldiers, with each family being required to give a
son to the cause. The Karen National Union, Karenni
Nationalities People's Progressive Army and the New Mon State
Party also recruit children as young as twelve.
In the case of the Burmese government, there are no
statistical or other data about the recruitment of children.
However, since 1988 the size of the armed forces has doubled,
from 180,000 to around 400,000, and anecdotal evidence,
supported by the testimony of refugees and some soldiers
themselves, suggests that in part this increase has been
facilitated by the recruitment of boys aged thirteen to
fifteen years old. Often this recruitment is forced, with
whole villages or sections of towns being ordered to "give" a
number of boys to the army or face heavy fines. In other cases
the coercion is less explicit but just as compelling. In
ethnic minority areas, for example, the families of soldiers
are exempt from arbitrary taxation or forced relocations.
Refugees interviewed by Human Rights Watch/Asia in Thailand
report that there are often fourteen- and fifteen-year-old
soldiers in the brigades which take them to work as porters.
In every case, the former porters note that the young soldiers
were especially brutal in their treatment of civilian porters.
Testimony from villagers who have escaped to the Thai
border reveals that in many areas of the Karen State villages
are required to "donate" one boy from each ward to army
service. One former soldier interviewed by Human Rights
Watch/Asia in September 1995 said that he was fifteen years
old when he was recruited into the army. The army had ordered
the council chairman to find ten "volunteers" from his quarter
of the town. At the military training school in Meiktilla in
1989 there were 500 other recruits, none of them older than
himself. He described the brutal and brutalizing treatment he
and all the recruits experienced in this training camp, which
included beatings, sleep deprivation and starvation. He also
said that Christian recruits were not permitted to worship or
pray, and he did not know of any Muslims in the army.
In September 1995, Human Rights Watch/Asia interviewed
several soldiers in Burma. In Loikaw, Karenni State, we talked
to three soldiers who all said they were sixteen years old.
They all came from the same village and had joined the army
together three years before when they were just thirteen. They
had seen front-line action after just one year of training
when they were still only fourteen years old. They said that
two others who had joined with them had been killed in the
fighting against the Mong Tai Army in June 1994. In the same
town, we met a ten-year-old boy in a green uniform who claimed
to be a soldier. He said that he had run away from home at age
seven and had joined the army. He said he received 350 Kyats
per month (less than $3.50), out of which he had to pay for
his clothes and uniforms, but food and board were free. He had
never seen front-line action but was looking forward to doing
so within twelve months. The following morning, not quite
believing his story, we went to the army parade ground. There
he was seen at the gates of the compound, standing in uniform
with his "brothers." In March 1996, we also spoke to a group
of young soldiers in Sittwe, Arakan State who were waiting at
a jetty. The twenty boys were all aged fifteen or less, and
half of them had already taken part in active service against
Muslim rebels in northern Arakan.
As the army continues to expand, and it is reported that
the SLORC's target is for 500,000 soldiers, the forced
recruitment of children is set to continue. The recruitment of
children under the age of fifteen violates Article 38 of the
Convention on the Rights of the Child, and the recruitment of
children under the age of sixteen also violates Burma's
national laws.
Forced Relocations
Forced relocations in ethnic minority areas is a
military strategy which has been employed by the Burmese army
for decades, part of a "four cuts" policy designed to cut off
food, funds, information and recruits from the ethnic rebels.
During late 1995 and throughout 1996 this policy has escalated
in Burma's Shan, Karenni and Karen States to affect an
estimated 200,000 people.
In October 1996, Human Rights Watch/Asia interviewed
scores of refugees in Thailand from the Shan and Karenni
states who had escaped from relocation sites. The bulk of the
relocations took place between March and May 1996, although
after the end of the rainy season in September, the
relocations had begun again. In almost every case, the
refugees reported that soldiers had entered their village and
told them they had between three and six days to evacuate
their homes and move to designated relocation sites. One
Karenni women interviewed by Human Rights Watch/Asia said she
had lived in the Shadaw relocation site for nearly two months
before fleeing at night. She described conditions in Shadaw as
appalling. No provision had been made for the newly displaced,
and they had to find what shelter they could in schools and
churches and underneath large houses in the town. Some had
constructed temporary shelters, but they were given no
financial assistance. The soldiers gave them a rice ration
once a week, but it was usually only enough to last one day.
Fresh water was scarce, especially after the rains started in
June, and there was no sanitation provided, and they had to
drink, wash and defecate in the same river. She and her two
youngest children were taken by a sudden fever one month after
they arrived. They paid to be treated at the one government
clinic in the town, but both her children, aged three and six,
died. Another woman, who was also moved to the Shadaw
relocation site, said that her eighteen-month-old son died
from a fever there, just ten days after the family arrived.
In another case, a Shan woman told Human Rights Watch/Asia how
she had fled from the Shan state while seven months pregnant
after her husband had been killed by the Burmese army which
suspected him of assisting the Shan rebels. She gave birth
prematurely the day she arrived in Thailand.
Children in Conflict with the Law
With regard to administration of juvenile justice, the
Child Law emphasizes institutionalization, appropriate
punishment and retributive sanctions, as opposed to
rehabilitation and reintegration that would enable the child
to assume a more constructive role in the society. For
example, Section 34 provides for institutionalization of a
child whose character needs to be reformed until he attains
eighteen years.
International laws as embodied in the Convention on the
Rights of the Child, U.N. Standard Minimum Rules for the
Administration of Juvenile Justice (The Beijing Rules) 1985,
and U.N. Guidelines for the Prevention of Juvenile Delinquency
(The Riyadh Guidelines) 1990 have moved away from this
approach in handling juvenile offenders to lay emphasis on
rehabilitation, reintegration, prevention and the recognition
of human rights of children in conflict with the law.
The Beijing Rules are concerned primarily with
development of a new juvenile justice system that focuses on
alternatives to institutionalization. The basic principles of
Beijing Rules are the principle of proportionality and the
limited use of deprivation of liberty. According to Rule
17.1(b), restrictions on the personal liberty of the juvenile
shall be imposed only after careful consideration and shall be
limited to the possible minimum.
Similarly, the CRC, in Article 37 (b) provides that the
arrest, detention or imprisonment of a child shall be in
conformity with the law and shall be used only as a measure of
last resort and for the shortest appropriate period of time.
Further, the Riyadh Guidelines emphasize the development of
social policies and practices that avoid criminalizing and
penalizing behaviors. It urges governments to reform
education programs, reorient community resources towards
supporting children and families in order to provide care and
protection, and ensure the physical and mental well-being of
youth.
The Convention on the Rights of the Child recognizes the
right of every child in conflict with the law to be treated in
a manner consistent with the promotion of the child's sense of
dignity and worth, which reinforces the child's respect for
the human rights and fundamental freedoms of others, and also
in a manner which takes into account the needs of persons of
his or her age. In the legal climate existing in Burma today,
it is unlikely that anyone, whether adult or child, will be
treated in this manner.
Children in Situations of Exploitation
Section 24 of the Child Law gives every child the right
to engage in work in accordance with law and of his own
volition. However, it does not provide adequate protection
for children who work. Existing Burmese laws allow for
different minimum ages in different industries: the 1951
Factories Act and the 1951 Shops and Establishments Act
prohibits the employment of any person under the age of
thirteen; the 1951 Oilfield Labour and Welfare Act prohibits
the employment of persons under the age of fifteen. These laws
also regulate the number of hours per day children may work
and the rest periods they are entitled to, and again these
regulations differ from industry to industry. Neither these
laws nor the Child Law include provisions for regular
monitoring of children at work, and the report of the
government to the Committee on the Rights of the Child
excludes even the possibility that children work in
potentially hazardous industries: "In the Union of Myanmar,
children engage in work only in the economic enterprises of
their families; as a consequence, the problem of child workers
is quite rare." Equally, the possibility that parents may
exploit their own children clearly is not considered, nor is
the more frequent exploitation of children adopted into other
families.
Moreover, the lack of political will to ensure that
children are not exploited at work is clear in Chapter XVII of
the Child Law, dealing with offenses and penalties. Here there
is no punishment for persons engaging children who are not of
age. Section 65(a) only provides punishment for persons
employing a child to perform work which is "hazardous to the
life of the child or which may cause disease to the child or
which is harmful to the child's moral character." Even then,
the sentence is very minimal and does not extend beyond six
months or a fine of 1,000 Kyats ($10).
Forced Labor
In practice, the government itself is the worst violator
of its own laws, by directly and indirectly forcing thousands
of children to work as porters or as day laborers for no pay.
Since 1992, the military has forced at least two million
people across the country to work without pay on the
construction of roads, railways and bridges. In recent years,
the use of forced labor has increased, as the government tries
to improve its infrastructure in order to attract foreign
investment and tourism. Hundreds, if not thousands, have died
from beatings, exhaustion and a lack of medical care. Those
forced to do such work include women, children and the aged.
The use of forced labor in Burma has led to an investigation
by the International Labor Organization under Article 37, and
the European Commission announced on January 16, 1996 that it
was also conducting an investigation into the practice.
Children are affected by forced labor both directly, when they
have to work alongside their parents, and indirectly when the
work takes their parents away from them for long periods,
leaving them vulnerable to abuse.
A twenty-eight-year-old man interviewed by Human Rights
Watch/Asia in a refugee camp in Thailand in May 1994 described
conditions for forced laborers at the Ye-Tavoy railway, one
the most notorious construction site in Burma, and one which
work continued in January 1996:
It was very difficult for families like mine which have
only one man. When I was at the work site, the rest of my
family found it difficult to work the farm and grow food. When
a man returns, women are expected to replace him at the work
site...I saw some elderly people working there and some
children aged about twelve years. I also saw some pregnant
women working there...One girl from Moe Gyi village who was
four and half months pregnant died from malnutrition and
diarrhea in mid-March 1994. She did not get any medical help.
People were beaten by soldiers for trying to escape or for not
working hard enough. Some people attempted to flee from the
work site but were caught. They were beaten and tortured in
front of everyone.
In September 1995, a report in a British newspaper
confirmed that twelve-year-old children were still working on
this same railway project. The article included an interview
with a Karen man who had worked on the railway who said
"labourers encouraged children at the site to rest, but the
soldiers beat them and ordered them to work. Some children
were as young as twelve." In January 1995 a woman from Karen
state interviewed by Human Rights Watch/Asia said, "Sometimes
we didn't go because we were tired, and they [the soldiers]
came and dragged us from the our house. My children were
screaming and crying, but I just had to leave them there."
This is a common problem, it seems, as increasing numbers of
people are taken to work for the military. In many cases,
women with babies who are still suckling have to take their
babies with them, tied to their backs as they do heavy work
such as breaking rocks or digging trenches.
Forced labor also takes place in Burma's towns and
cities. In March 1996, Human Rights Watch/Asia witnessed
school children and their teachers in Mrauk-Oo, Arakan state,
being forced to clear the streets, literally picking off any
small rocks on stones on earth roads, placing and painting
white stones along the road sides and other menial tasks in
preparation for a visit by Lt. Gen. Khin Nyunt. We witnessed
one young boy, aged about twelve years old, who was kicked in
the face by a soldier because he had temporarily stopped
working. The day happened to be a day for national exams,
which meant that because all schools in Mrauk-Oo were
temporarily closed, no children were able to take their final
year exams.
The use of unpaid civilians, including children, on labor
projects is a violation of the International Labor
Organization's 1930 Convention. Insofar as children are used
on these projects, the government also violates Article 32 of
the Convention on the Rights of the Child in which states are
called upon to "recognize the right of the child to be
protected from economic exploitation and from performing any
work that is likely to be hazardous or to interfere with the
child's education, or to be harmful to the child's health or
physical, mental, spiritual, moral or social development." In
December 1996, the European Commission recommended after
completing its investigation into the practice of forced labor
in Burma, that the European Union suspend the preferential
trade tariffs which Burma receives as a developing country
"until such time as forced labour practices are abolished."
Sexual Abuse and Exploitation
The Child Law does not sufficiently protect children from
sexual abuse and exploitation. While it is aimed at punishing
the abuser, rather than the child, it does not prohibit child
prostitution and using children in pornographic films and
gives only a light sentence of two years imprisonment and/or a
fine of 10,000 Kyats (about $100) to persons "neglecting
knowingly that a girl [leaving boys totally unprotected] under
his guardianship, who has not attained the age of sixteen, is
earning a living by prostitution," or "using the child in
pornographic cinema, video, television or photography"
(Section 66). Given the seriousness and the nature of the
offense under consideration, more stringent measures should be
taken.
The Child Law is also inadequate with regard to the
trafficking of children into sexual or other slavery in
foreign countries. In fact, there is no mention of any penalty
for trafficking children, despite the fact that there are at
least 50,000 Burmese girls and women working in Thailand as
prostitutes at any one time. With the fear of HIV infection,
brothels have increased the turnover of girls, and
increasingly younger girls are sought by clients, who believe
they are less likely to be infected. The reality is that for
young girls, especially for virgins, the risk of HIV infection
during sexual activity is greater than for older women, and
many girls become infected immediately. As a result, sending
or forcing girls and women into prostitution is to condemn
many of them to death.
In 1994 Human Rights Watch published a report A Modern
Form of Slavery, which documented the way in which girls and
women are trafficked to Thailand to work in brothels where
they live as virtual slaves, in often appalling conditions,
with no means of escape. The thirty women and girls whom Human
Rights Watch interviewed in detail for this report were aged
between twelve and twenty-two, with the average age being
around seventeen. They all came from poor families, most of
them from farming communities, and only four had ever been to
school and could read or write their own language. All the
girls had left Burma to earn money for themselves or their
families in Thailand, but only four of them knew beforehand
that they would be involved in prostitution: all except one,
who was forcibly kidnapped into Thailand, were told that they
would get jobs in factories or as domestic workers.
Twenty-six of the thirty women and girls were taken from
Burma into Thailand at Mae Sai, a town bordering Burma's Shan
state. In 1992 border trade between the two countries through
Mae Sai was legalized, and there are Burmese and Thai
checkpoints on either side of a short wooden bridge over the
Sai River which separates the two countries. In most cases,
the women and girls were accompanied by a parent, brother,
aunt or teacher, and they met a Thai agent in Mae Sai. The
agent gave the companion money equivalent to between $40 and
$800. From there the girls were taken to brothels in different
parts of Thailand, most of them in Bangkok. Only once they
were in the brothels did the girls realize that they were
going to have to work as prostitutes and that they were
effectively in debt bondage to the brothel owner, having to
work until they paid off not only the price their parents or
companions had been given, but also the agents' cut and
interest.
The abuses which trafficked girls endure are extreme.
They may have as many as fifty clients a day. In most cases
the girls are prevented from leaving the brothels, and some
are chained to their beds to prevent escape. Finally, when
they do manage to escape, the girls are often too ashamed to
return home. By that time, many are found to be HIV positive.
Those that are "rescued" in police raids are detained by the
Thai authorities on immigration charges and are held for
months in detention centers where they face further abuse.
>From there they are deported to Burma, where again they face
arrest under immigration laws for having left the country
illegally.
There are three different articles in the Convention on
the Rights of the Child which aim to protect children from
this exploitation. Article 34 binds the state parties to the
convention to "protect the child from all forms of sexual
exploitation and sexual abuse"; in Article 35 "States Parties
shall take all appropriate national, bilateral and
multilateral measures to prevent the abduction, the sale of or
traffic in children for any purpose in any form" and, insofar
as the girls are held against their will in brothels, Article
37 also applies. Burma has taken some steps to work in
coordination with Thai authorities to prevent the trafficking
of women and children, and has also signed, although not yet
ratified, the Convention for the Suppression of the Traffic
in Persons and the Exploitation of the Prostitution of Others.
But much more needs to be done by the government to ensure
that future generations of young girls and boys are not sold
into sexual slavery, beginning !
with the prosecution of traffickers and an education program
for the most vulnerable children and their parents.
IX. ACKNOWLEDGMENTS
This report was researched and written by Zunetta
Liddell, research associate for Human Rights Watch/Asia. Joy
Ezeilo provided valuable legal research and information.
Sidney Jones and Cynthia Brown edited the report and Paul Lall
provided production assistance.
Information in this report was gathered over a period of
five years, and many people inside Burma and outside the
country provided assistance and information. The author wishes
to thanks them all.